The Right to a Healthy Environment as an EU Normative Response to COVID-19: A Theoretical Framework
Published online by Cambridge University Press: 22 February 2022
Summary
ABSTRACT
The COVID-19 pandemic represents the umpteenth reason to establish a right to a healthy environment, still uncodified under EU law. Therefore, this contribution proposes an innovative theoretical framework that revolves mainly around the interpretative role of the European Court of Justice (CJEU) and Article 6.3 of the Treaty on European Union (TEU). Accordingly, an EU right to a healthy environment might be established on a threefold basis: first, this fundamental right has been already embedded in the vast majority of EU Member States’ constitutions or it has been ascertained by their constitutional courts. It is therefore argued that it constitutes a tradition common to the Member States. Second, it complies with the purposes, values and principles set out in the EU founding treaties, and it emerges as essential component to the fulfilling of the Union's secondary legislation on the environment. Third, its formulation is also supported by international and regional sources of law as required by the case law of the Court of Justice.
INTRODUCTION
In the attempt to give a rational explanation to the outbreak of the sudden, massively disruptive COVID-19 pandemic, numerous researchers linked its spreading to the level of air pollution, highlighting that highly polluted areas in Italy, Spain and in the United States correlate with the highest number of infection cases. According to the literature, long-term exposure to fine particulate matter (PM) not only facilitates the diffusion of the virus but also increases its death rate.
Alas, the pandemic sheds light on states’ failure in protecting both the environment and the health of their citizens. As regards the former, the Court of Justice of the European Union (CJEU, including also the former Court of the European Communities) found Italy, one of the most severely coronavirus-affected countries, persistently and systematically violating the European Union (EU, the Union) rules against PM air pollution that, according to the World Health Organization (WHO), causes heightened mortality due to cardiovascular and respiratory diseases, such as COVID-19. As regards the latter, according to a study conducted by the University of Harvard, the exposition of African-Americans to the virus in the United States is three times higher than of white Americans, given their restricted access to the American health care system.
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- European Yearbook on Human Rights 2021 , pp. 159 - 186Publisher: IntersentiaPrint publication year: 2021